Business News Releases

ASIC reports on decisions to cut red tape: Feb-May 2015

ASIC has released its latest report outlining decisions on relief applications covering the period February 1 to May 31, 2015.

Businesses frequently approach ASIC for assistance to help make the law work better for them. ASIC uses its discretion to vary or set aside certain requirements of the law where there is a net regulatory benefit or where ASIC can facilitate business or cut red tape without harming other stakeholders.

This is a key part of ASIC's function and between February 1 to May 31, 2015, ASIC approved 372 relief applications.

Report 449 Overview of decisions on relief applications (February to May 2015) (REP 449), aims to improve the level of transparency and the quality of publicly available information about decisions ASIC makes when asked to exercise its discretionary powers to grant relief from provisions of the:

  • Corporations Act 2001 (Corporations Act), or
  • National Consumer Credit Protection Act 2009 (National Credit Act).

REP 449 also discusses the various relevant publications released by ASIC during the four months.

The report summarises examples of situations where ASIC has exercised, or refused to exercise, its exemption and modification powers under the Corporations Act. The report also highlights instances where ASIC has considered adopting a no-action position regarding specified non-compliance with statutory provisions.

Finally, the report provides examples of decisions that demonstrate how ASIC has applied its policy in practice which ASIC thinks will be of particular interest for capital market participants and for participants in the financial services industry. The report includes an appendix detailing the publicly available individual relief instruments referred to in the report.

BACKGROUND

ASIC can modify or set aside certain provisions of Chapters 2D (officers and employees), 2G (meetings), 2M (financial reporting and audit), 5C (managed investment schemes), 6 (takeovers), 6D (fundraising) and 7 (financial services) of the Corporations Act.

ASIC also has powers to give relief under the provisions of Chs 2 (licensing) and 3 (responsible lending) of the National Credit Act and from all or specified provisions of the National Credit Code, which is in Sch 1 to the National Credit Act.

In limited situations, ASIC may also consider providing a no-action letter when instances of non-compliance with certain statutory provisions have been brought to ASIC’s attention.

A no-action letter states to a particular person that ASIC does not intend to take regulatory action over a particular state of affairs or particular conduct. The factors that ASIC will consider when dealing with a request for a no-action letter is set out in Regulatory Guide 108 No-action letters (RG 108).

ASIC publishes a copy of most of the relief instruments issued in theASIC Gazette. Credit instruments are available from the ASIC website under credit relief.

APPLYING FOR RELIEF

Applications for relief must be in writing and should address the requirements set out in Regulatory Guide 51 Applications for relief (RG 51) (and any other regulatory guides relevant to the application).

Applications can be submitted electronically toThis email address is being protected from spambots. You need JavaScript enabled to view it.. Fees are applicable for relief applications.

ASIC is streamlining the process for considering applications for relief to ensure that applications are assessed as quickly and efficiently as possible. As part of this, ASIC will be more strictly enforcing its policy to refuse applications for relief where information needed to make a decision is not provided.

Where ASIC has asked for additional information within a specified time period—and a reasonable explanation is not provided for any delay—an application for relief may be refused.

www.asic.gov.au

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ACCC authorises Solar Retailer Code of Conduct

The Australian Competition and Consumer Commission has granted re-authorisation to the Clean Energy Council for its revised Solar Retailer Code of Conduct for five years.

The Council represents Australia’s renewable energy and energy efficiency industries. The Code is a voluntary system that solar retailers can sign up to and meet best practice standards that will benefit consumers and the industry.

"Ensuring that solar retailers, as well as other industry participants, strive to improve standards of practice is important for consumers as household solar panels are a significant purchase,” ACCC deputy chair Delia Rickard said.

"Achieving higher standards in the industry will increase consumer confidence, enable consumers to make better decisions and enhance compliance as the industry grows."

The Code enhances consumer protection by requiring ethical sales practices, increases disclosure to consumers about the costs of entering into agreements and reduces safety risk by requiring Code signatories to use accredited installers.

"The solar panel market is evolving, which has led to different business models emerging. While this could lead to greater confusion for customers, signatories to the Code will be required to provide important information to consumers about the nature of the agreement they are entering into," Ms Rickard said.

Authorisation provides statutory protection from court action for conduct that might otherwise raise concerns under the competition provisions of the Competition and Consumer Act 2010.

Broadly, the ACCC may grant an authorisation when it is satisfied that the public benefit from the conduct outweighs any public detriment.

Further information is available at Clean Energy Council Limited - Revocation and Substitution - A91495 & A91496.

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COSBOA slams secret big business letter to Government

COUNCIL of Small Business of Australia (COSBOA) has expressed deep concern at the existence of a confidential briefing letter provided to the Federal Cabinet from the Business Council of Australia (BCA), arguing against an effects test in competition regulation.

The fact that this letter is confidential and unavailable to the public and other industry groups is highly concerning and COSBOA calls on the BCA to immediately release this letter for scrutiny and comment from other interest groups.

Paul Nielsen, Chairman of COSBOA said, “We note, as reported in the AFR (24 Sept 15), that the Chairman of the BCA, Catherine Livingstone has provided a confidential eight page briefing letter on 25 August to the Federal Cabinet that spells out the BCA’s case against an effects test, including an attachment containing their views on unintended consequences.

“Whilst we understand the need for secret inter-governmental briefings from departments such as Defence on security matters, the BCA and its members are public companies and competition policy affects the whole business community – not just the big businesses that make up the BCA,” said Mr Nielsen.

Mr Nielsen further questioned whether the clandestine document was provided at the behest of the Government. “If that is the case, has the Government requested a similar briefing letter from organisations with a different view?  So far all anyone has seen from the BCA are assumptions to ‘protect their patch’ and fly in the face of organisations and regulators like the ACCC, who are chartered with protecting and preserving the rights of the whole community, not just big business.

“Given that Competition Policy and the proposed changes to the effects test by the Government’s own Harper Review will affect all businesses in Australia, we are dismayed that the BCA should try and unduly influence Government policy under a sinister cloak of secrecy. What do they have to hide?” asked Mr Nielsen.

Peter Strong, CEO of COSBOA added: “The only comment that we have seen from the confidential briefing from the BCA is that an effects test will ‘put at risk developments such as the iPhone’. The iPhone was developed in a country that has an effects test, the USA. There is an argument that it was because of the effects test that innovators were able to prosper and grow in that country. What other pieces of misinformation are in the BCA’s submission?

“COSBOA, and its members, as well as many regulators, noted economists and the broader community, know the power and influence held by this small number of big businesses is having a hugely negative effect on innovation and productivity in Australia. An effects test will aid the ACCC to make informed assessment of competition and ensure any dominance is good for the economy and not just for a few big businesses,” said Mr Strong.

http://www.cosboa.org.au/

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ACCC concerned over implementation of the Food and Grocery code

The Australian Competition and Consumer Commission is investigating reports about the approach supermarket retailers are taking to implement the Food and Grocery Code of Conduct (Code).

ACCC Chairman Rod Sims said, “The aim of the Code is to redress the imbalance in bargaining power that can exist between suppliers and large grocery retailers by prohibiting certain types of unfair conduct.

“The Code imposes a duty to deal with suppliers in good faith and we are concerned by reports we have received from suppliers that suggest that some retailers have not got off to a good start when it comes to implementing the Code,” Mr Sims said.

“The ACCC has concerns as to the manner in which some retailers, in particular Woolworths and Aldi, are presenting new Grocery Supply Agreements (GSAs), which might give the impression that the supplier is not able to negotiate the terms of the GSA.

“The ACCC is also concerned about the low level of detail provided in some GSAs about the circumstances in which certain payments may arise.”

The Code sets out a number of prohibitions on, for example, requiring a payment for wastage that occurs at the premises of the retailer.

While it is possible for retailers and suppliers to opt out of such prohibitions, this can only occur if the opt outs are agreed, if the agreement sets out the circumstances in which the opt out applies and if the payment is reasonable in the circumstances.

“One of the purposes of the Code is to provide certainty to suppliers, who are often in a much weaker bargaining position when dealing with retailers. In order to provide that certainty, the ACCC expects retailers to set out the circumstances in which they will seek payments from suppliers,” Mr Sims said.

The Code requires that retailers offer code-compliant GSAs. Suppliers should not feel compelled to sign these agreements and should seek advice before signing them. In particular, the Code will confer protections on suppliers 12 months after a retailer has signed up to the Code, regardless of whether a supplier has accepted a code-compliant GSA.

The ACCC has written to retailers about the manner in which they purport to be giving effect to the Code. The retailers have responded providing their new GSAs and the correspondence they have sent to suppliers offering the new GSAs. The ACCC will continue to monitor compliance with the code.

Background

The ACCC is responsible for enforcing the Code and has developed guidance material, which is available at Food and Grocery Code of Conduct.

Coles, Woolworths, Aldi and Sydney-based retailer About Life have signed up to the Code.

The Code has rules about GSAs, payments, termination of agreements, dispute resolution and a range of other matters.

It is a voluntary code which complements existing protections under theCompetition and Consumer Act 2010, including the unconscionable conduct provisions.

The Code requires retailers and wholesalers to deal with suppliers in good faith during the bargaining stages of establishing GSAs, during the term of the agreement, and in dealing with any disputes.

Under the Code, retailers are required to offer suppliers code-compliant GSAs – whether the agreements are new, or variations to existing ones.

www.accc.gov.au

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Competition policy reform: get on with it, says IPA

THE Institute of Public Accountants (IPA) is urging the Government to move forward with the Harper Review and get on with the job of competition policy reform.

“Australia is in desperate need for competition reform to ensure we have a healthy and effective competitive market and in particular, address the need to protect the competitive process so that small and medium-sized enterprises can compete on a more level playing field,” said IPA chief executive, Andrew Conway.

“Reform means more than just tax reform, which of course is also essential for our economy; it is about healthy competition and the Harper Review has provided a framework for Australia to move forward – so let’s get on with it.

“Key areas of current policy to be addressed include unconscionable conduct and section 46 of the Competition and Consumer Act.  Section 46 needs an overhaul to strengthen the prohibition on firms using their market power to substantially lessen competition; including the removal of the ‘take advantage’ element from the existing prohibition.

 “In essence, section 46 needs to be amended with an appropriate 'effects test'.  These recommendations form part of our Australian Small Business White Paper.

“There are other areas to be addressed for effective competition policy reform such as small business access to remedies, collective bargaining and competitive neutrality.  The IPA supports a strengthened ACCC to implement the changes.

“We need to ensure a fair and level playing field for small business that encourages innovation and growth of the SME sector,” said Mr Conway.

www.publicaccountants.org.au

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